STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDUSTRIAL WASTE SERVICE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-3O6OBID

) 88-3061BID

FLORIDA DEPARTMENT OF TRANSPORTATION, ) 88-3062B1D

) 88-3063B1D

Respondent. )

) DAVE SMITH & COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-3064B1D

) FLORIDA DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Gregory P. Borgognoni, Esquire, and David A. Jones, Esquire, Miami, Florida, for Industrial Waste Service, Inc., Christine E. Bryce, Esquire, Miami, Florida, for Department of Transportation. Joseph Caplano, Qualified Representative for Power Sweeping Service, Inc. Dave Smith, Qualified Representative for Dave Smith and Company, Inc.

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on July 8 and July 15, 1988. Industrial Waste Service, Inc., and the Department of Transportation filed proposed findings of fact and conclusions of law. Rulings in proposed findings of fact are made in the appendix to this Recommended Order. Power Sweeping Service, Inc., and Dave Smith and Company, Inc., waived the opportunity to make such filings.

ISSUE

The issue is whether the Florida Department of Transportation correctly awarded a series of five road sweeping contracts. The agency's intended decision resulted in the protest of four contract awards by Industrial Waste Service, Inc., and one contract by Dave Smith and Company, Inc.

PRELIMINARY MATTERS

At the opening of the hearing on July 8, 1988, the Florida Department of Transportation moved to dismiss the protests filed by Industrial Waste Service, Inc., as untimely. Industrial Waste Service, Inc., objected to the consideration of the motion at that hearing because it had been served on Industrial Waste Service only the morning of the hearing, and therefore it had

not had an adequate opportunity to prepare its defense to the factual allegations in the motion. The motion was deferred for hearing on July 15, 1988, but the evidence with respect to the substance of the bid protests was taken on July 8, 1988.

FINDINGS OF FACT

1. The Florida Department of Transportation prepared bid packages for a series of contracts for mechanical sweeping of state roadways in Dade County and distributed them to interested parties. The bid blanks indicated that the bids would be opened at 10:00 a.m. on May 12, 1988.

   
   

2. The bid package included a sheet entitled "Protest Sheet" which states:

   
   

   Unless otherwise notified by certified mail, return receipt requested, bid tabulations will be posted at 1000 N.W. 111th Avenue, District Contracts Office, Miami, Florida 33172, on the 7th day from the letting date. Upon posting, it will be the Department's intent to award to the low bidder. Any bidder who feels he is adversely affected by the Department's intent to award to the low bidder must file with the Clerk of Agency Proceedings, Department of Transportation, Haydon Burns Building,

   M.S. 58, Room 562, 605 Suwannee Street, Tallahassee, Florida 32399-0458, a written notice of protest within 72 hours of posting of the bid tabulations. (Emphasis is original)

   
   

3. The bid blank also contains a form entitled "Proposal" which states in part:

   
   

   The undersigned further

   agree(s) ...to execute the Contract within 20 calendar days after the date on which the notice of award has been given....

   
   

   A contract form is also included in the bid blank, which ultimately will be executed by the successful bidder and the Department.

   
   

4. The bid tabulations were posted at the Department's office on May 19, 1988, although they were posted later than 10:00 a.m. The Department also sent the tabulations by certified mail that day to all parties who had submitted bids. No return receipts were offered into evidence; the envelope mailed to Dave Smith and Company, Inc., was presented at the hearing, but no party moved its admission into evidence. The two green postal strips taped to the back of that letter are indicative of the use of removable return receipt cards. The Hearing Officer concludes that the Department mailed bid tabulations to bidders by certified mail, return receipt requested.

5. The certified letter containing tabulations was received by Dave Smith and Company, Inc., either during the weekend of May 21 and 22 or on the morning of Monday, May 23, 1988.

   
   

6. Based on the evidence, the Hearing Officer concludes that the bid tabulations mailed by the Department were received by Industrial Waste Service by certified mail, return receipt requested, on Monday, May 23, 1988. Industrial Waste Service filed its notice of protest with respect to four contracts on May 24, 1988.

   
   

7. In the interim between the posting of the bid tabulations and the filing of any notices of protest, the Department of Transportation made the bid packages submitted by all bidders available for public inspection pursuant to Chapter 119, Florida Statutes, the Public Records Law. The bid packages were examined by Mrs. Dave Smith, of Dave Smith and Company, Inc. After that examination, the papers making up each bid had been detached (i.e., staples removed). Mrs. Smith had rearranged the pages of the bid submissions from the order in which they had been received, leaving a jumbled mass of paper. She informed the Department that the equipment list was not contained in Industrial Waste Service's bid submission for Contract E-6285. The Department of Transportation was unable to authenticate its bid files at final hearing as complete files or as files containing the bids submissions in the same condition as when they were initially received by the Department of Transportation. The original bid submission of Industrial Waste Service for Contract E-6287 is now completely missing from the Department's records.

   
   

8. Industrial Waste Service, Inc., submitted a number of bids for the road sweeping contracts which were being let. The bid file for Contract E-6285 now has no equipment list attached. Such a list is required by the Special Provisions section of the bid specifications. The testimony of Dan Pavone of Industrial Waste Service that an equipment list had been attached to all bids when submitted to the Department of Transportation is accepted.

   
   

9. With respect to Contracts E-6286 and E-6288, the bid submissions for Power Sweeping Service, Inc., contain no equipment list. The testimony of Joseph Caplano of Power Sweeping Service, Inc., that equipment lists were included when the bids were submitted to the Department of Transportation is accepted.

   
   

10. Errors occurred in the bids submitted by Industrial Waste Service, Inc., for Contracts E-6287 and E-6289. On the bid cover page, the contractor filled in his bid price for the contract. The cover page for each of the sweeping contracts let look very similar. Industrial Waste Service switched the cover pages on these two contracts, so that for Contract E-6287 it apparently bid $38,849.11 but had meant to bid $135,442.95. On Contract E-6289 it bid

    $135,442.95, when it meant to aid $38,849.11. The cover sheet is not the only page on which the bidder indicates his total price. There is a matrix page in the bid submission which describes the different items of service (i.e. litter removal, sweeping), the approximate quantities of units of service (such as miles to be swept), and the bidders fill in unit price figures (i.e., cost per mile of sweeping or litter removal). The unit prices are then extended and the extended prices are summed to produce the total bid amount. These sheets had also been switched. It is readily apparent that the bids were switched, because the pre-printed quantities such as mileages for sweeping on the two contracts are switched. Moreover, at the bid opening, other bidders immediately understood that these two bids of Industrial Waste Service were wildly out of line, but made sense if the bids had been switched. The representative of the

    Department also agreed at the final hearing that the differences in the quantities shown on the matrix page showed the sheets had been switched by the bidder.

    
    

11. Industrial Waste Service does not want to perform a contract on which it meant to bid $135,442.95 for $38,849.11. It inquired whether it would be penalized in any way if its protest were not upheld, the Department awarded it Contract E-6287 for $38,894.11, and it withdrew that bid. Department employees informed Industrial Waste Service that it could withdraw the bid without penalty.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this matter, Section 120.53(5), Florida Statues (1987).

    
    

13. All notices of protest filed by Industrial Waste Service, Inc., were filed within 72 hours of receipt of notification of bid tabulations by certified mail, return receipt requested. The protest sheet included in the bid blank indicates that the Department may issue notice of its intention to award bids either through posting or notification by certified mail, return receipt requested; it is reasonable for a protester to act within 72 hours of the later event. Both these methods of notice are authorized by Section 120.53(5)(b), Florida Statutes (1987). If the Department of Transportation wishes only to post notice at its offices of its intention to award contracts it may do so, but it would have to amend its protest sheet in its bid blanks to make that clear. It is unfair for an agency to utilize both posting and certified mail to notify bidders, but to maintain that the 72-hour period runs from the earlier of the two methods of notification when it uses both. The Department's motion to dismiss the protest of Industrial Waste Service is denied.

    
    

14. The bids submitted by Industrial Waste Service, Inc., contained equipment lists at the time they were submitted. The protest filed by Dave Smith and Company, Inc., with respect to Contract E-6285 should be rejected. Although no equipment list is now associated with the Department's file, it must have been lost somehow while the contracts were made available for public inspection.

    
    

15. On Contract E-6286, the Industrial Waste Service protested the award to Power Sweeping Service on the ground that the Power Sweeping Service included no equipment list. This protest should also be rejected. Power Sweeping Service had included its equipment list with its bid, and the absence of the list from the bid documents in Department of Transportation's files is similarly explained by having made the bids available for pubic inspection.

    
    

16. With respect to Contract E-6287, the Department of Transportation should recognize that the bid of Industrial Waste Service, Inc., was meant to be

    $135,442.95. The universal recognition of the bidder's error requires a common sense adjustment by treating the information on this bid and on Contract E-6289 as if it had been included in the correct bid packet. That corrected bid is higher than the bid of Power Sweeping Service, Inc., and the contract should be awarded to Power Sweeping Service, Inc. The protest of Industrial Waste Service with respect to that contract should be rejected.

    
    

17. On Contract E-6288, the protest of Industrial Waste Service, Inc., to the absence of an equipment list on the bid of Power Sweeping Service, Inc.,

    should be rejected, and the contract should be awarded to Power Sweeping Service, Inc.

    
    

18. On Contract E-6289 the Department of Transportation should recognize that the bid of Industrial Waste Service, Inc., was meant to be $38,849.11. The Department of Transportation had indicated its intention to award the contract to Dave Smith and Company which had bid $41,895.42. The Department of Transportation should award the contract to Industrial Waste Service, Inc., the low bidder. The decision of the Court of Appeal in Department of Transportation

1. Ronlee, Inc., 418 So.2d 1326 (Fla. 3d DCA 1988), cert. denied, So.2d (Fla. May 26, 1988), does not require a contrary result. After discovering a

   $300,000 error in its bid, Ronlee, Inc., did not withdraw its bid, but entered into a construction contract, completed 75 percent of the work, and only then sued for reformation of the contract to recover the cost of its error. The appellate court's decision denies relief and discusses the necessary elements to obtain rescission or reformation of a contract in equity due to the unilateral error of a contractor. Those principles are inapplicable here, for no contract has been executed by the Department and any bidder yet. In this administrative proceeding, Industrial Waste Service merely wants DOT to recognize what other bidders and DOT's own contract administrators have recognized--that sheets in its bids obviously were switched. No other bidder has shown, nor has DOT argued or proven, that correction of the obvious error gives Industrial Waste any competitive advantage.

   
   

   RECOMMENDATION

   
   

   With respect to each contract, the following is recommended:

   
   

   Recommended

   Contract No. Description Agency Action

   
   

   E-6285	Protest by Dave Smith and Company, based on absence of equipment list on Industrial Waste Service's bid submission.	Contract should be awarded to Industrial Waste Service, Inc.
   E-6286	Protest by Industrial Waste Service based on absence of equipment list in Power Sweeping Service's bid submission.	Contract should be awarded to Power Sweeping Service, Inc.
   E-6287	Bid of Industrial Waste Service should be re- cognized as a bid of $135,442.95, but it still would not be the lowest bid.	Contract should be awarded to Power Sweeping Service, Inc
   E-6288	Protest by Industrial Waste Service based on absence of an equipment list in bid submission of Power Sweeping Service, Inc.	Contract should be awarded to Power Sweeping Service, Inc.

   E-6289 DOT should recognize the Contract should be transposition of informa- awarded to

   tion in bids by Industrial Waste Industrial Waste Service Service, Inc.

   on this contract and Contract E-6287, and treat Industrial Waste Service's bid as a bid of $38,849.11, which would be lower than the bid of Dave Smith and Company of $41,985.42. The protest of Industrial Waste Service should be upheld.

   
   

   DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of July, 1988.

   
   

   WILLIAM R. DORSEY, JR.

   Hearing Officer

   Division of Administrative Hearings The Oakland Building

   2009 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1988.

   
   

   APPENDIX TO RECOMMENDED ORDER

   CASE NOS. 88-3060BID, 88-3061BID, 88-3062BID, 88-3063BID

   
   

   Rulings on proposed findings of fact Industrial Waste Service, Inc.:

   
   

   1. Covered in Statement of the Issue.

   2. Covered in Finding of Fact 4.

   3. Covered in Findings of Fact 5 and 6.

   4. To the extent relevant, covered in Finding of Fact 6.

   5. Covered in Finding of Fact 8.

   6. Covered in Finding of Fact 8.

   7. Covered in Finding of Fact 7.

   8. Covered in Finding of Fact 9.

   9. Covered in Findings of Fact 10 and 11.

   10. Rejected as unnecessary because no party disputed that Power Sweeping Service's bid was lowest.

   11. Rejected as irrelevant because all parties included equipment lists in their bids.

Rulings on proposed findings of fact of Department of Transportation:

1. Covered in Finding of Fact 1.

2. Covered in Finding of Fact 2.

3. Rejected as unnecessary.

4. Covered in Finding of Fact 10.

5. Covered in Finding of Fact 7.

6. Covered in Finding of Fact 7.

7. Rejected as unnecessary.

8. Covered in Findings of Fact 8 and 9.

9. Due to the finding that the documents were included in the bids submissions, rejected as unnecessary.

10. Rejected because the Department's position that the equipment list is not an essential document to be submitted by a contractor with whom the Department has done business in the past, but is essential in a bid submission by a contractor who the Department has not done business before is unreasonable, and places bidders on different footings. In view of the finding that all bidders did submit equipment list, the Department's position is of no consequence to the decision here.

11. Rejected as unnecessary.

12. Rejected as unnecessary and for the reasons stated for rejecting Finding of Fact 10.

13. Rejected as unnecessary.

14. Rejected as unnecessary and for the reasons given for rejecting Finding of Fact 10.

15. Rejected as unnecessary.

16. Rejected as argument, not a finding of fact.

17. Rejected as unnecessary.

18. Covered in Finding of Fact 4.

19. Rejected as unnecessary.

20. Covered in Finding of Fact 6.

COPIES FURNISHED:

David A. Jones, Esquire Gregory P. Borgognoni, Esquire Tew, Jorden & Schulte

701 Brickell Avenue

Miami, Florida 33131-2801

Mr. Dan Pavone

Industrial Waste Service, Inc.

380 N.W. 37th Court Miami, Florida 33142

Dave H. Smith, President Dave Smith & Company Post Office Drawer 7177

Ft. Lauderdale, Florida 33338

Specialized Services Post Office Box 840006

Pembroke Pines, Florida 33084

Mr. Joseph Caplano Power Sweeping Service Post Office Box 984 Hialeah, Florida 33011

Christine E. Bryce, Esquire Department of Transportation District Six Office

602 South Miami Avenue Miami, Florida 33130

James W. Anderson, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32301-8064

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III, Esquire General Counsel

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street A Tallahassee, Florida 32399-0458

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

INDUSTRIAL WASTE SERVICE, INC.,

Petitioner, Case Nos. 88-3060BID 88-3061BID

vs. 88-3062BID

88-3063B1D

FLORIDA DEPARTMENT OF TRANSPORTATION,

Respondent.

/ DAVE SMITH & COMPANY, INC.,

Petitioner,

vs. Case No. 88-3064BID

FLORIDA DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer, copy attached. Petitioner, DAVE SMITH & COMPANY, INC. (hereinafter DAVE SMITH) and Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT) have filed exceptions to the Recommended Order which are considered and addressed below.

FINDINGS OF FACT

The Findings of Fact in the Recommended Order are considered correct and are incorporated as part of this Final Order. DAVE SMITH's exceptions concern the ultimate finding by the Hearing Officer that certain documents were attached to bids at the time of submittal. Findings of Fact 8 and 9 both state that testimony was adduced that the equipment lists of Industrial Waste Service, Inc., for Contract E-6285 and of Power Sweeping Service, Inc., in Contracts E- 6282 and E-6288, were attached to the bids at the time of submittal. It is the Hearing Officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence and reach ultimate findings of fact based on competent, substantial evidence. Since there is competent, substantial evidence in support of the Hearing Officer's finding, DAVE SMITH's exceptions are rejected.

CONCLUSIONS OF LAW

The Conclusions of Law in the Recommended Order are considered correct with the following exception.

With respect to Contracts E-6287 and E-6288, the Department rejects the Hearing Officer's conclusion that the Department must correct the bids submitted by Industrial Waste Services, Inc. The Department is under no obligation to correct unilateral errors. Graham v. Clyde, 61 So.2d 656 (Fla. 1956). Without doubt, Industrial Waste Services, Inc. could have avoided the errors by the exercise of due diligence.

Although at first glance it may seem illogical to deny what appears to be the correction of an obvious mistake, the adoption of such a policy would undermine the competitive bidding process. As the Florida Supreme Court stated in Graham, supra at 658:

If errors or this nature can be relieved in equity, our system of competitive bidding on such contracts would in effect be placed in jeopardy and there would be no stability whatever to it. It would encourage careless, slipshod bidding in some cases and would afford a pretext for the dishonest bidder to prey on the

pubic

The fact that the Department knew of the mistake at the time of the letting is not such a compelling distinction as to create an obligation on the part of the Department to correct the mistake. See Department of Transportation v.

Ronlee, 518 So.2d 1326 (Fla. 3rd DCA 1988). This is particularly true where the Department would have to go outside the bid itself, to a separate bid packet, to correct the mistake.

This is not to say that a bidder can not be relieved from a unilateral error. A bidder is permitted to withdraw a bid on a public contract when the following circumstances exist: 1) the bidder acted in good faith in submitting the bid: 2) the error is of such magnitude that enforcement of the bid would work severe hardship upon the bidder; 3) the error was not the result of gross negligence of willful inattention; 4) the error was discovered and communicated to the public body and a request to withdraw is made before the acceptance of the bid. See State Board of Control v. Clutter Construction Corp., 139 So.2d

153 (Fla. 1st DCA 1962). Because these circumstances are present in the instant case, the proper relief for Industrial Waste Services, Inc.'s unilateral error in its bids on Contracts E-6287 and E-6288 is to allow Industrial Waste Services, Inc. to withdraw its bids.

ACCORDINGLY, IT IS ORDERED as follows with respect to each of the contracts:

Contract E-6285 is awarded to Industrial Waste Service, Inc. Contract E-6286 is awarded to Power Sweeping Service, Inc.,; Contract E-6287 is awarded to Power Sweeping Service, Inc.; Contract E-6288 is awarded to Power Sweeping Service,

Inc.; and

Contract E-6289 is awarded to Dave Smith and Company.

DONE AND ORDERED this 6th day of September, 1988.

KAYE H. HENDERSON, P. E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Copies furnished to:

William R. Dorsey, Jr., Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Christine E. Bryce, Esquire Department of Transportation District Six Office

602 South Miami Avenue Miami, Florida 33130

James W. Anderson, Esquire Department of Transportation Haydon Burns Building, MS58 Tallahassee, Florida 32399-0458

David A. Jones, Esquire Gregory P. Borgognoni, Esquire Tew, Jorden & Schulte

701 Brickell Avenue

Miami, Florida 33131-2801

Mr. Dan Pavone

Industrial Waste Service, Inc.

380 Northwest 37th Court Miami, Florida 33142

Dave H. Smith, President Dave Smith & Company Post Officer Drawer 7177

Ft. Lauderdale, Florida 33338

Specialized Services Post Office Box 840006

Pembroke Pines, Florida 33084

Mr. Joseph Caplano Power Sweeping Service Post Office Box 984 Hialeah, Florida 33011

NOTICE OF RIGHT TO JUDICIAL REVIEW

Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(C) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Docket for Case No: 88-003060BID

Orders for Case No: 88-003060BID